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2019 Supreme(P&H) 1427
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Anil Kshetarpal, J.
Harpal Singh and others - Petitioners
Versus
State of Punjab and others - Respondents
CRM-M-18564-2019(O&M)
Decided On : 14-11-2019
For the Petitioner:Dr. Anmol Rattan Sidhu, Sr. Advocate, with Mr. Vibhor Bansal, Advocate, and Ms. Supriya Arora, Advs.
For the Respondent: Mr. Hittan Nehra, Addl.A.G.,Punjab. Mr. Gurcharan Dass, Adv.
The mandatory nature of the Magistrate's power under Section 323 Cr.P.C. to commit the case to the Court of Sessions once forming an opinion that the case should be tried by the Court of Sessions.
Headnote:
Magistrate's Power - Committing Case to Court of Sessions - Section 323 Cr.P.C. - Summary
Fact of the Case:
The case involved the death of an individual, with the complainant alleging murder by the accused and the accused claiming death due to crossfire between police officials and terrorists. The Magistrate rejected previous applications to commit the case to the Court of Sessions, but later, after examining the evidence, formed an opinion to commit the case to the Court of Sessions under Section 323 Cr.P.C.
Finding of the Court:
The court found that the Magistrate had the power to commit the case to the Court of Sessions at any stage before signing the judgment, and it was mandatory for the Magistrate to do so once forming an opinion that the case should be tried by the Court of Sessions.
Issues: The main issue was whether the rejection of previous applications by the Magistrate to commit the case to the Court of Sessions barred the Magistrate from forming an opinion to commit the case at the conclusion of the trial.
Ratio Decidendi: The court emphasized the mandatory nature of the Magistrate's power under Section 323 Cr.P.C. to commit the case to the Court of Sessions once forming an opinion that the case should be tried by the Court of Sessions.
Final Decision: The court upheld the Magistrate's power to commit the case to the Court of Sessions and disposed of the petition with liberty for the petitioners to make their submissions or contest their case at the stage of framing charge.
JUDGMENT :
Anil Kshetarpal, J.
The issue which this court is called upon to answer is “whether rejection of previous applications by the Magistrate to commit the case to the court of Sessions debars the Magistrate to form an opinion while appreciating the evidence or material available on the file on conclusion of the trial to commit the case to the court of Sessions particularly when homicide is not disputed?
2. Some facts are required to be noticed:-
3. Late Sh. Paramjit Singh was killed on 09.07.1993. Complainant claims that he was killed by the accused mainly the police officials along with Mohinder Kaur whereas respondent-accused claims that he died due to cross firing between the police officials and terrorists. Initially a petition was filed by the grand father of the deceased (respondent herein) for probe. Directions were issued to the Chief Judicial Magistrate to carry out probe. Chief Judicial Magistrate vide his report dated 27.02.1999 formed an opinion that deceased-Paramjit Singh, who was employed as a constable with the Punjab Police has been accidentally killed in the cross firing between the police and terrorists. After the report, the matter came before the High Court and it was disposed of vide order dated 01.04.2002 granting liberty to respondent Daljit Singh (grand father of the deceased) to file a criminal complaint which was filed alleging offence under Section 302 IPC. The learned Magistrate after recording preliminary evidence formed an opinion and summoned the accused under Section 304-A and 120B IPC vide order dated 22.11.2003. After appearance charges were framed under Section 304-A, vide order dated 02.03.2009. Revision petition as well as attempt before the High Court to get the charge under Section 302 framed was rejected. Thereafter, some evidence was led and Daljit Singh (respondent herein) again made an attempt by filing an application with a prayer to commit the case to the court of Sessions which was dismissed on 07.09.2013. Against which revision petition also remained unsuccessful. In the meantime, application under Section 311 Cr.P.C was filed for leading additional evidence by producing and proving statement of accused No.11 in a separate case in evidence. The aforesaid application was allowed and the additional evidence was permitted to be led. Once again Daljit Singh filed an application for committing the case to the court of Sessions on the ground that offence under Section 302 is prima facie made out. However, it was rejected by the learned Magistrate on 13.03.2014 which was again affirmed by the High Court vide order dated 11.02.2019 Annexure P-15. While dismissing the petition, High Court in the previous round observed as under:-
“The petitioner's evidence is going on. In case, after recording petitioner's witnesses and defence version, the trial Court comes to the conclusion that there is a prima facie evidence for committal of the case to Court of Sessions, in that eventuality, the trial Court is at liberty to do the same, but prior to that stage, it is premature to say that any of the private respondents had any intention to kill the grandson of the petitioner.”
4. Thereafter, prosecution as well as defence concluded their evidence.
5. Learned Judicial Magistrate Ist Class noticed that as per MLR the deceased has suffered following injuries:-
(1) 1½ cm X 1½ cm lacerated wound with singed margins was present 5 cm below the tragus of right ear. On dissection underlying vessels were ruptured. Massive heamatoma was present. This wound on probing was communicating with lacerated wound 2½ cm X 2½ cm on the left side of neck 6 cm below the left ear. Margins are singed and everted.
(2) A lacerated wound 1½ cm X 1 ½ cm on the back of the left side 1 cm below the left scapula. The margins were inverted and signed. On dissection, the wound communicates with a lacerated wound measuring 3 cm X 3 cm with singed everted margins on the front of left side of the chest 1 cm below the lateral third of clav
